Prime Minister’s aide defends court ruling in Kishanganga case

Special Assistant to the Prime Minister Kamal Majidulla on Friday defended Pakistan’s stance in the International Court of Arbitration, terming the court’s decision over the controversial Kishanganga hydropower project a success of the country.

Speaking at a press conference here, Majidulla faced tough media queries for selection of the time of the press briefing on extremely important issue a day before completion of the government’s tenure while the court had announced the decision on February 18.

He, however, maintained that the Court of Arbitration had given its ruling “110 percent” in Pakistan’s favour, guaranteeing Pakistan’s fundamental right of water flow. “This is a major decision of the court, which is 110 percent in favour of Pakistan, guaranteeing our water,” he said, adding that Pakistan achieved victory on three points out of four.

The court, in its February 18 partial award, maintained that the Kishenganga Hydro-Electric Project (KHEP) constitutes a Run-of-River Plant under Indus Water Treaty (IWT) 1960, India may accordingly divert water from the Kishenganga/Neelum River for power generation by the KHEP in the manner envisaged. However, when operating the KHEP, India was under an obligation to maintain a minimum flow of water in the Kishanganga/Neelum River, at a rate to be determined by the Court in final award.

He pointed out that Pakistan and India each had forwarded two questions and the court gave its decision on three questions out of the four queries. He said that court was expected to come up with a decision on the last question in December 2013, in which it had to determine Pakistan’s right to minimum water flow and process of observation of the reservoirs, which was Pakistan’s right under the IWT.

He was of the view that bureaucracy in past dealt with controversial hydropower project, which caused heavy loss to national interest by adopting delaying tactics in different controversial hydropower projects concerning Pakistan and India.

He said that in one of the question put forward by Pakistan whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below dead storage level in any circumstances except in the case of an unforeseen emergency, the Court gave its final decision and determined that: (i) Except in the case of an unforeseen emergency, the Treaty does not permit reduction below dead storage level of the water level in the reservoirs of run-of- river plants on the Western Rivers; (ii) The accumulation of sediment in the reservoir of a run-of-river plant on the Western Rivers does not constitute an unforeseen emergency that would permit the depletion of the reservoir below Dead Storage Level for drawdown flushing purposes; (iii) Accordingly, India may not employ drawdown flushing at the reservoir of the Kishanganga Hydro Electric Plant to an extent that would entail depletion of the reservoir below dead storage level.

He pointed out that the Court had decided – in relation to the second dispute – that the Treaty “does not permit reduction below the Dead Storage Level of the water in the reservoirs of run-of-river plants on the Western Rivers, thus India cannot employ drawdown flushing that would entail depletion of reservoir below the Dead Storage Level – not only at Kishenganga but for all future run-of-river hydroelectric projects”.

Such clear interpretation prohibiting India from lowering the reservoir water levels below the Dead Storage Level was a major relief for Pakistan as this protected the country’s right to receive uninterrupted water supplies on the Western rivers, he said, adding this interpretation also provided Pakistan strong grounds for challenging India’s conventional low level orifice spillways in the design for sediment management and reservoir maintenance purposes.

This decision was particularly significant in the protection of Pakistan’s rights under the Indus Waters Treaty, 1960 (IWT or the Treaty), he pointed out, saying that India had planned 150 run-of-river power plants on the Western Rivers of which 47 were above 50 MWs.

“Such clear direction by the Court against the construction of these storage-oriented power plants, and the manner in which India has proceeded according to what, when and where she pleases in the past, in direct violation of the Treaty, provides an important safeguard for the protection of Pakistan’s right to uninterrupted water flows of the Western Rivers”, he said, adding without this determination of our right would had been seriously compromised giving complete control to India of the Western Rivers.

He said that delayed and late flows had already seriously negatively impacted agriculture in Pakistan with falling output due to late Kharif sowing, adding that the situation, consequently, creates unnecessary tension between the water stakeholders in Pakistan with conflicts and mistrust.

He said that the Court’s decision had prohibited India from manipulating the flow, which was particularly important for the critical three months of the planting season in Pakistan, by drawdown flushing down the river bed. He said that during the course of the proceedings India introduced the question of sovereignty over Jammu and Kashmir claiming that Pakistan had no right to invoke the Treaty for adverse impact to power generation at the Neelum Jhelum Hydroelectric Plant as the project was not situated in Pakistan. In response, Pakistan successfully argued that the Treaty was specifically crafted to circumvent the territorial dispute over Jammu and Kashmir, he said.